Assault on the 1st Amendment Will Hurt the Economy

Assault on the 1st Amendment Will Hurt the Economy

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Not so long ago, people would often say that the American attitude toward the Bill of Rights, and especially the First Amendment, was one of reverence, and perhaps even awe.  These days, the First Amendment right to freedom of religion is coming under increasing assault from government at all levels – and it will cost us dearly, in both dollars and declining liberty.

Yesterday, the controversial contraception/sterilization mandate imposed by the Department of Health and Human Service went into effect, requiring employers to provide birth control and sterilization services at no charge to employees.  Only places of worship received an exemption from this requirement, but not their affiliated organizations, such as hospitals, schools, and charities.  Nor did the HHS mandate give exemptions to privately owned businesses whose owners have religious views that bar the use and facilitation of such products and services.       

Until now, no one had ever thought to force Americans into direct participation in birth control and sterilization services.  Now, however, the federal government has nearly unlimited power to impose such requirements, thanks to the massive new regulatory scheme within the Affordable Care Act (ACA), commonly known as ObamaCare.  

Businesses of 50 or more employees have struggled for two years to determine the cost of future employment and expansion with the large ambiguities still present in the ACA, which will eventually get clarified through more top-down regulation within HHS.  This large gap in the ability to accurately project compliance costs and risks from the ACA as well as Dodd-Frank and other legislation since the 2008 financial crisis has contributed significantly to the obstacles for job creation in the American economy.

While compliance costs remain difficult to project, non-compliance costs are easier to project.  The Independent Womens Forum, which opposes the HHS mandate as well as the ACA in general, pointed out in a campaign launched yesterday that the regulation calls for fines of either $100 per worker per day during non-compliance, or up to a $1,400 fine per worker each year for not providing birth control or sterilization services free of charge to employees. 

How do those non-compliance costs impact businesses and other organizations that cannot comply because of their religious beliefs?  Under the assumption that the annual fine would be the most likely to be assessed, the IWF points out that a school with 100 employees would face a $140,000 bill from the IRS for refusing to obey the mandate.  Colleges that employ 280 people would see a bill closer to $500,000.  Hospital systems that employ thousands of doctors, nurses, orderlies, and office personnel would have to shell out millions in fines each year.

These exorbitant fines would push these employers even further toward the option of simply canceling health insurance coverage and paying those penalties instead.  That option would be cheaper than covering the cost of health insurance on its own, let alone the additional fines for non-compliance on the HHS mandate.  While this would make financial sense for employers, it will significantly increase the cost of Obamacare, as those employees would receive taxpayer-funded subsidies to buy individual policies in the new exchanges.

As I wrote earlier this year at The Fiscal Times, strict enforcement of this mandate might convince religious organizations to pull out of the health-care and education markets completely, which they will most certainly do before violating the precepts of their religious beliefs.  That would have disastrous consequences for healthcare in the U.S., especially in the case of those hospitals and clinics run by the Catholic Church, which accounts for a sixth of all hospitals in the US.

However, the cost cannot all be measured in money or even in access to health care.  If government can dictate to business owners – whether specifically owned by religious organizations or to other business owners with views antithetical to birth control – that they have to either pay a tax for adhering to their principles or violate their conscience to remain in business, we have lost a fundamental liberty: the right to conduct commerce while retaining freedom of religious expression. 

A federal judge in Colorado concurred last week when issuing a temporary injunction against the mandate for Hercules Industries, whose Catholic owners refused to comply or pay a fine for following their religious principles.  The government’s arguments for forcing Hercules to provide free birth control and sterilization service, ruled Judge John Kane, “are countered, and indeed outweighed, by the public interest in the free exercise of religion.”

Nor is this the only assault on religious liberty in the news this week. The timing of this mandate coincides with another assault on religious expression. Two weeks ago, Chick-fil-A’s chief operating officer Dan Cathy expressed support for the “Biblical” definition of marriage – and all hell broke loose.  Even though the fast-food firm has an explicit policy against discriminating on the basis of sexual orientation, just that statement alone (as well as the Cathy family’s ties to two conservative activist groups opposed to same-sex marriage) prompted three mayors from America’s largest cities – Boston, Chicago, and San Francisco -- to threaten to block Chick-fil-A from expanding to their jurisdictions. 

One Chicago alderman told  the press that he would only allow Chick-fil-A’s business permit to proceed if Cathy pledged to stop associating with Focus on the Family and Eagle Forum and start supporting same-sex marriage, even though Cathy’s Christian faith prevents him from doing so.

These incidents are disturbing enough taken separately.  Put together, it shows a widespread lack of tolerance in today’s governing classes, both at the federal and local levels.  The overall message to people of faith as well as religious organizations wanting to participate in markets is this: Get Out.  For those hostile to religion in general, this must be a very satisfying moment, but the real costs will put the economic future of this nation in distinct peril. 

Until now, we have welcomed people of all faiths and creeds into the marketplace as long as they observed rational and reasonable regulation intended to prevent fraud, theft, and abuse, but without trampling on their ability to abide by their beliefs.  In return, a large number of people bring their capital and talent to our markets and generate wealth, jobs, stability, infrastructure, and an increased tax base to our communities.  If we force these people to take their capital and exit these markets, it will result in seriously degraded economies, restriction on choice, fewer jobs, less demand, and a lower standard of living – not to mention keep some of the most talented people from addressing the difficult issues that we face. 

Our founders understood that explicitly. They saw the disruptions and damage done by religious tests not just for office but also for commerce, and acted to ensure that our governments would not impose such systems on Americans.  For more than two hundred years, that freedom transformed us into the most powerful nation in the world, economically, militarily, and politically.  Imposing a test for political correctness that excludes tens of millions of faithful Americans cannot help but undermine all that progress as well as our natural rights as citizens. 

If government has grown so powerful as to be able to impose and prosecute such tests, then that may be the clearest indication yet that government has grown too large and intrusive to the detriment of all.